United States Court of Appealsmedia.ca1.uscourts.gov/pdf.opinions/20-1158P-01A.pdf · 2 days...

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United States Court of Appeals For the First Circuit No. 20-1158 HAROLD SHURTLEFF and CAMP CONSTITUTION, a public charitable trust, Plaintiffs, Appellants, v. CITY OF BOSTON and GREGORY T. ROONEY, in his Official Capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge] Before Lynch, Selya, and Lipez, Circuit Judges. Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam, Daniel J. Schmid, and Liberty Counsel were on brief, for appellants. Robert Arcangeli, Assistant Corporation Counsel, with whom Eugene L. O'Flaherty, Corporation Counsel, was on brief, for appellees. Alex J. Luchenitser, Richard B. Katskee, Patrick Grubel, Steven M. Freeman, David L. Barkey, Amy E. Feinman, Cindy Nesbit, and Monica Miller on brief for Americans United for Separation of Church and State; Anti-Defamation League; American Humanist Association; Central Conference of American Rabbis; Covenant Network of Presbyterians; Global Justice Institute; Hindu American

Transcript of United States Court of Appealsmedia.ca1.uscourts.gov/pdf.opinions/20-1158P-01A.pdf · 2 days...

  • United States Court of Appeals For the First Circuit

    No. 20-1158

    HAROLD SHURTLEFF and CAMP CONSTITUTION, a public charitable

    trust,

    Plaintiffs, Appellants,

    v.

    CITY OF BOSTON and GREGORY T. ROONEY, in his Official Capacity

    as Commissioner of the City of Boston Property Management

    Division,

    Defendants, Appellees.

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Denise J. Casper, U.S. District Judge]

    Before

    Lynch, Selya, and Lipez,

    Circuit Judges.

    Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam,

    Daniel J. Schmid, and Liberty Counsel were on brief, for

    appellants.

    Robert Arcangeli, Assistant Corporation Counsel, with whom

    Eugene L. O'Flaherty, Corporation Counsel, was on brief, for

    appellees.

    Alex J. Luchenitser, Richard B. Katskee, Patrick Grubel,

    Steven M. Freeman, David L. Barkey, Amy E. Feinman, Cindy Nesbit,

    and Monica Miller on brief for Americans United for Separation of

    Church and State; Anti-Defamation League; American Humanist

    Association; Central Conference of American Rabbis; Covenant

    Network of Presbyterians; Global Justice Institute; Hindu American

  • Foundation; Maine Conference, United Church of Christ; Men of

    Reform Judaism; Methodist Federation For Social Action; National

    Council of Jewish Women; New Hampshire Conference, United Church

    of Christ; People for the American Way Foundation;

    Reconstructionist Rabbinical Association; The Sikh Coalition;

    Southern New England Conference, United Church of Christ; Union

    for Reform Judaism; and Women of Reform Judaism, amici curiae.

    January 22, 2021

  • - 3 -

    SELYA, Circuit Judge. This case comes before us for a

    second time, albeit in a different posture. The issues are much

    the same, though presented in sharper focus on a better-developed

    record. As such, they conjure up what might be described, in a

    turn of phrase popularly attributed to Lawrence "Yogi" Berra, as

    a sense of "déjà vu all over again."1

    The case has its genesis in a suit filed by plaintiffs

    Harold Shurtleff and Camp Constitution in which they complained

    that the defendants — the City of Boston and Gregory T. Rooney, in

    his official capacity as Commissioner of Boston's Property

    Management Department (collectively, the City) — trampled their

    constitutional rights by refusing to fly a pennant, openly

    acknowledged by the plaintiffs to be a "Christian Flag," from a

    flagpole at Boston City Hall. The district court granted summary

    judgment in favor of the City. See Shurtleff v. City of Bos.

    (Shurtleff III), No. 18-CV-11417, 2020 WL 555248, at *6 (D. Mass.

    Feb. 4, 2020). Concluding, as we do, that the government speech

    doctrine bars the maintenance of the plaintiffs' free speech claims

    and that their remaining claims under the Establishment Clause and

    the Equal Protection Clause lack bite, we affirm.

    1 We say "popularly attributed to" because at least one

    scholar has declared that "although this [phrase] is commonly cited

    as a 'Berra-ism,' Yogi Berra denies ever saying it." Ralph Keyes,

    "Nice Guys Finish Seventh": False Phrases, Spurious Sayings, and

    Familiar Misquotations 152 (1992).

  • - 4 -

    I. BACKGROUND

    We begin by rehearsing the relevant facts (most of which

    are undisputed, though the inferences from them are not) and the

    travel of the case. The City owns and manages three flagpoles in

    an area in front of City Hall referred to as City Hall Plaza. The

    three flagpoles are each approximately eighty-three feet tall and

    are prominently located in front of the entrance to City Hall —

    the seat of Boston's municipal government. Ordinarily, the City

    raises the United States flag and the POW/MIA flag on one flagpole,

    the Commonwealth of Massachusetts flag on the second flagpole, and

    its own flag on the third flagpole. Upon request and after

    approval, though, the City will from time to time replace its flag

    with another flag for a limited period of time.

    Such requests are typically made by a third party in

    connection with an event taking place within the immediate area of

    the flagpoles. In welcoming these third-party banners, the City's

    website proclaims that the City seeks to "commemorate flags from

    many countries and communities at Boston City Hall Plaza during

    the year" (emphasis in original). The opportunity to display these

    kinds of flags was created in order to establish "an environment

    in the City where everyone feels included, . . . to raise awareness

    in Greater Boston and beyond about the many countries and cultures

    around the world[, and] to foster diversity and build and

    strengthen connections among Boston's many communities."

  • - 5 -

    In addition to these flag-raisings, the City also allows

    organizations to hold events in several locations near City Hall.

    Endeavoring to educate those who may be interested in hosting such

    an event, the City has published event guidelines on its website.

    The guidelines make clear that people need the City's permission

    to hold events at City-owned properties and direct interested

    parties to an application form.

    The application form (which is available either online

    or as a document) allows applicants to designate the location at

    which they wish to hold an event, listing six options: Faneuil

    Hall, Sam Adams Park, City Hall Plaza, the City Hall Lobby, the

    City Hall Flag Poles, and the North Stage. Although those

    interested in hosting a flag-raising event must submit an

    application form, neither the electronic nor the written version

    of the form mentions the option of raising a flag on any of the

    City's three flagpoles.

    Once the City receives an application, its policy and

    practice are to perform an initial review. The purpose of this

    review is in part to ensure that there are no conflicting events

    occupying the same space, that the application is complete and

    accurately describes the proposed event, that the event would not

    endanger the public, and that other administrative requirements

    have been satisfied.

  • - 6 -

    The obligation to review and act upon applications falls

    into Rooney's domain. Before a flag-raising event is approved,

    Rooney must determine that the City's decision to raise a flag is

    consistent with the City's message, policies, and practices. Each

    applicant submits a short description of the flag that it wishes

    to hoist (e.g., "Portuguese Flag"), and it is Rooney's invariable

    practice to act upon the flag-raising request without seeing the

    actual flag. The record makes manifest that Rooney has never

    sought to look at a flag before approving an application. If

    Rooney concludes that the event meets the City's standards, he

    then approves the flag-raising event. And if a flag-raising event

    is disapproved, the City offers the applicant the opportunity to

    hold the proposed event, without the flag-raising, either at City

    Hall Plaza or at some other location.

    In a twelve-year period (from June 2005 through June

    2017), the City approved 284 flag-raising events that implicated

    its third flagpole. These events were in connection with ethnic

    and other cultural celebrations, the arrival of dignitaries from

    other countries, the commemoration of historic events in other

    countries, and the celebration of certain causes (such as "gay

    pride"). The City also has raised on its third flagpole the flags

    of other countries, including Albania, Brazil, Ethiopia, Italy,

    Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey.

    So, too, it has raised the flags of Puerto Rico and private

  • - 7 -

    organizations, such as the Chinese Progressive Association,

    National Juneteenth Observance Foundation, Bunker Hill

    Association, and Boston Pride. Broadly speaking, we group these

    approvals as approvals for "the flags of countries, civic

    organizations, or secular causes."

    Against this backdrop, we introduce the plaintiffs.

    Camp Constitution is an all-volunteer association that seeks "to

    enhance understanding of the country's Judeo-Christian moral

    heritage." Shurtleff is the founder and director of Camp

    Constitution. In July of 2017, the plaintiffs emailed Lisa Menino,

    the City's senior special events official, seeking leave to fly

    their own flag over City Hall Plaza. In their words, the proposed

    event would "raise the Christian Flag" and feature "short speeches

    by some local clergy focusing on Boston's history."

    At the time of this request, the City had no written

    policy for handling flag-raising applications. What is more,

    Rooney had never before denied a flag-raising application. On

    this occasion, though, the plaintiffs' request "concerned" Rooney

    because he considered it to be the first request he had received

    related to a religious flag.

    Of course, some of the flags that the City had raised

    contained religious imagery. The Portuguese flag, for instance,

    contains "dots inside blue shields represent[ing] the five wounds

    of Christ when crucified" and "thirty dots that represent[] [sic]

  • - 8 -

    the coins Judas received for having betrayed Christ." As another

    example, the Turkish flag situates the star and crescent of the

    Islamic Ottoman Empire in white against a red background. Indeed,

    the City's own flag includes a Latin inscription, which translates

    as "God be with us as he was with our fathers." None of the flags

    that the City had previously approved, however, came with a

    religious description.

    Mulling the plaintiffs' application, Rooney conducted a

    review of past flag-raising requests and determined that the City

    had no past practice of flying a religious flag. He proceeded to

    deny the plaintiffs' flag-raising request. In response to the

    plaintiffs' inquiry into the reason for the denial, Rooney

    responded that the City's policy was to refrain respectfully from

    flying non-secular third-party flags in accordance with the First

    Amendment's prohibition of government establishment of religion.

    Rooney offered to fly some non-religious flag instead. The

    plaintiffs spurned this offer.

    In September of 2017, Shurtleff once again requested

    permission for a flag-raising event at City Hall Plaza. This time,

    he submitted a flag-raising application that titled the event as

    "Camp Constitution Christian Flag Raising." The event, which was

    intended to "[c]elebrate and recognize the contributions Boston's

    Christian community has made to our city's cultural diversity,

    intellectual capital and economic growth," would feature three

  • - 9 -

    speakers: Reverend Steve Craft (who would speak on the need for

    racial reconciliation), Pastor William Levi (who would speak on

    "the blessings of religious freedom in the U.S."), and Shurtleff

    himself (who would present a Boston-centric historical overview).

    Believing that its response to the plaintiffs' first flag-raising

    request was self-explanatory, the City chose not to respond

    further.

    About a year later, the City embodied its past policy

    and practice in a written Flag Raising Policy. This policy

    includes seven flag raising rules, the first of which forbids the

    "display [of] flags deemed to be inappropriate or offensive in

    nature or those supporting discrimination, prejudice, or religious

    movements."

    On July 6, 2018 — roughly three months before the City

    adopted its written Flag Raising Policy — the plaintiffs sued the

    City in the federal district court, seeking injunctive relief, a

    declaratory judgment, and money damages. Three days later, they

    moved for a preliminary injunction. The district court denied the

    plaintiffs' motion, see Shurtleff v. City of Bos. (Shurtleff I),

    337 F. Supp. 3d 66 (D. Mass. 2018), and we affirmed, see Shurtleff

    v. City of Bos. (Shurtleff II), 928 F.3d 166 (1st Cir. 2019). Back

    in the district court, the parties conducted discovery and

    eventually cross-moved for summary judgment. The district court

    heard arguments and, in a comprehensive rescript, granted the

  • - 10 -

    City's motion and denied the plaintiffs' cross-motion. See

    Shurtleff III, 2020 WL 555248, at *6. This timely appeal followed.

    II. ANALYSIS

    The plaintiffs assign error to the district court’s

    grant of summary judgment. Specifically, they challenge the

    court's holding that the City's display of third-party flags on

    the City Hall flagpole constitutes government speech, not subject

    to most First Amendment restrictions. In their view, the City's

    flagpoles comprise a public forum, thus consigning the City's

    content-based restriction of plaintiffs' speech to strict scrutiny

    (which they say the restriction cannot pass). Relatedly, they

    contend that the City's permitting process for the raising of

    third-party flags vests in government officials unbridled

    discretion to approve and deny protected speech and, thus, imposes

    an unconstitutional prior restraint on speech. Finally, they

    contend that the City's refusal to fly a religious flag

    transgresses both the Establishment Clause and the Equal

    Protection Clause.

    The City urges us to reject each and all of these

    contentions and simply to affirm the district court's rulings. It

    is joined by a group of amici, who have filed a helpful brief in

    support of the judgment below.

    We afford de novo review to a district court's entry of

    summary judgment. See Dávila v. Corporación De P.R. Para La

  • - 11 -

    Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007). In conducting

    this tamisage, we assess the facts in the light most flattering to

    the nonmovants (here, the plaintiffs) and draw all reasonable

    inferences to their behoof. See id. Summary judgment is

    appropriate only when the record demonstrates that there is no

    genuine issue as to any material fact and confirms that the movants

    are entitled to judgment as a matter of law. See Morelli v.

    Webster, 552 F.3d 12, 18 (1st Cir. 2009). That cross-motions for

    summary judgment were simultaneously adjudicated by the district

    court does not alter the applicable standards of review. See

    Blackie v. Maine, 75 F.3d 716, 720-21 (1st Cir. 1996).

    With these parameters in place, we turn to the

    plaintiffs' asseverational array, taking their arguments

    sequentially. At the outset, though, we pause to say a few words

    about the relevance of our earlier opinion (Shurtleff II).

    A. Our Earlier Opinion.

    We think it useful to center our Shurtleff II opinion

    within the preliminary injunction framework. That framework

    anticipates a four-part inquiry, see Corp. Techs., Inc. v. Harnett,

    731 F.3d 6, 9 (1st Cir. 2013); Ross-Simons of Warwick, Inc. v.

    Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996), requiring a

    district court to evaluate "the movant's likelihood of success on

    the merits; whether and to what extent the movant will suffer

    irreparable harm in the absence of preliminary injunctive relief;

  • - 12 -

    the balance of relative hardships, that is, the hardship to the

    nonmovant if enjoined as opposed to the hardship to the movant if

    no injunction issues; and the effect, if any, that either a

    preliminary injunction or the absence of one will have on the

    public interest," Ryan v. U.S. Immig. & Customs Enf't, 974 F.3d 9,

    18 (1st Cir. 2020). Among these four factors, "[t]he movant's

    likelihood of success on the merits weighs most heavily in the

    preliminary injunction calculus." Id. As we have explained, "[i]f

    the movant 'cannot demonstrate that he is likely to succeed in his

    quest, the remaining factors become matters of idle curiosity.'"

    Id. (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc.,

    287 F.3d 1, 9 (1st Cir. 2002)).

    In Shurtleff I, the district court denied the

    plaintiffs' threshold motion for a preliminary injunction. See

    377 F. Supp. 3d at 79. The court determined, among other things,

    that the plaintiffs had not shown a likelihood of succeeding on

    the merits of their claims. See id. at 78. On appeal, we affirmed

    this determination, concluding that the district court's appraisal

    was not an abuse of discretion. See Shurtleff II, 928 F.3d at

    171.

    The fact that Shurtleff II upheld the district court's

    determination that the plaintiffs were unlikely to prevail on the

    same claims that they now pursue is not determinative of either

    the issues that were before the district court in Shurtleff III or

  • - 13 -

    the issues that confront us here. There is, after all, a salient

    distinction between a decision granting or denying a preliminary

    injunction and a final decision on the merits (such as the entry

    of summary judgment). At the preliminary injunction stage, "an

    inquiring court need not conclusively determine the merits of the

    movant's claim; it is enough for the court simply to evaluate the

    likelihood vel non that the movant ultimately will prevail on the

    merits." Ryan, 974 F.3d at 18.

    Here, however, the appealed decision is one on the

    merits. In Shurtleff III, the district court had to determine

    whether the City had shown that there were no genuine issues of

    material fact and, if so, that it was entitled to judgment as a

    matter of law. See Morelli, 552 F.3d at 18. Moreover, the court

    had to make this determination on a record that was considerably

    better developed than the record available to it at the preliminary

    injunction stage. See Univ. of Tex. v. Camenisch, 451 U.S. 390,

    395-96 (1981). Thus, our decision in Shurtleff II, which was at

    most a validation of the district court's prediction of probable

    outcomes, see Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236,

    238 (1st Cir. 1986), could inform the district court's subsequent

    summary judgment decision but could not control it, see Univ. of

    Tex., 451 U.S. at 395.

  • - 14 -

    Shurtleff II relates to the current appeal in the same

    way. That decision, therefore, does not determine the outcome of

    this merits appeal. See id. We proceed accordingly.

    B. The Free Speech Claims.

    The plaintiffs' most loudly bruited argument is that the

    Free Speech Clause of the First Amendment does not permit the City

    to display a plethora of third-party flags in front of City Hall

    while refusing to display the Christian Flag proffered by the

    plaintiffs. The district court determined that this group of

    claims was foreclosed by the government speech doctrine, see

    Shurtleff III, 2020 WL 555248, at *5, and so do we.

    The proposition that the plaintiffs' free speech claims

    rise or fall on the classification of the challenged speech is

    uncontroversial. Even though the First Amendment restricts

    government regulation of private speech in government-designated

    public forums, such restrictions do not apply to government speech.

    See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) ("The

    Free Speech Clause restricts government regulation of private

    speech; it does not regulate government speech."); Walker v. Tex.

    Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 215 (2015)

    ("[When] the State is speaking on its own behalf, the First

    Amendment strictures that attend the various types of government-

    established forums do not apply."). Here, the classification of

    the speech in question is pivotal — but before attempting to

  • - 15 -

    resolve this classification inquiry, we map the relevant contours

    of the government speech doctrine.

    Two cases chiefly inform the configuration of this map.

    In Summum, the Supreme Court considered whether "the Free Speech

    Clause of the First Amendment entitles a private group to insist

    that a municipality permit it to place a permanent monument in a

    city park in which other donated monuments were previously

    erected." 555 U.S. at 464. The respondent, a religious

    organization, sought leave from the city to erect a monument that

    would contain "the Seven Aphorisms of SUMMUM," which the respondent

    said would be similar "in size and nature to the Ten Commandments

    monument" then in place at the city park. Id. at 465. The city

    denied the respondent's request, and the respondent sued (alleging

    an abridgment of the right to free speech). See id. at 465-66.

    The Court upheld the city's decision, ruling that because the

    display of "a permanent monument in a public park . . . is best

    viewed as a form of government speech," such a display is "not

    subject to scrutiny under the Free Speech Clause." Id. at 464.

    In determining that the placement of such a monument in

    a city-owned park constituted government speech, the Summum Court

    relied primarily on three factors. First, the Court focused on

    the history of governmental use of monuments, explaining that

    "[g]overnments have long used monuments to speak to the public"

    and that "[w]hen a government entity arranges for the construction

  • - 16 -

    of a monument, it does so because it wishes to convey some thought

    or instill some feeling in those who see the structure." Id. at

    470. Second, the Court considered whether the message conveyed by

    the monuments would be ascribed to the government. Id. at 471.

    The Court concluded that, in the city-park context, "there is

    little chance" that observers will fail to identify the government

    as the speaker. Id. Third, and finally, the Court considered the

    fact that the municipality "effectively controlled" the messages

    sent by the monuments because it exercised "final approval

    authority over their selection." Id. at 473. Giving weight to

    these factors, the Court determined that the erection of privately

    donated monuments in a city park constituted government speech.

    See id. at 472-73.

    A few years later, the Court revisited the government

    speech doctrine. In Walker, the issue was whether the rejection

    of a "specialty license plate design featuring a Confederate battle

    flag" by the Texas Department of Motor Vehicles "violated the

    Constitution's free speech guarantees." 576 U.S. at 203-04.

    Concluding that specialty license plates convey government speech,

    the Court held that Texas was "entitled to refuse to issue plates"

    that featured the proffered design. Id. at 219-20. In reaching

    this conclusion, the Court again employed the three-factor test

    developed in Summum.

  • - 17 -

    The Walker Court began by examining the history of the

    use of the medium by the government, then inquired into how closely

    the public identified the medium with the government, and went on

    to assay the degree of control the government maintained over the

    message conveyed. See id. at 210-13. In traveling down this path,

    the Court first found that license plates "long have communicated

    messages from the States." Id. at 211. Next, it found that the

    public reasonably interprets license plates as conveying a message

    on the state's behalf both because the plates bear "the name

    'TEXAS' in large letters" and because the state mandates vehicle

    owners to display the plate, owns all license plate designs, and

    dictates the manner in which vehicle owners may dispose of the

    plates. Id. at 212. Finally, the Court found that the state

    "effectively controlled" the messages conveyed on the license

    plates because it retained "final approval authority." Id. at

    213. These three factors, taken together, led inexorably to the

    conclusion that the challenged speech constituted government

    speech. See id.

    The three-part Summum/Walker test is controlling here.

    Mindful that the Court has indicated that Walker "likely marks the

    outer bounds of the government-speech doctrine," Matal v. Tam, 137

    S. Ct. 1744, 1760 (2017), we turn to whether the speech at issue

    falls within those bounds.

  • - 18 -

    We start by looking at the historical use of flags by

    the government. The parties do not gainsay that governments have

    used flags throughout history to communicate messages and ideas.

    See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,

    632 (1943) ("The use of an emblem or flag to symbolize some system,

    idea, institution, or personality, is a short cut from mind to

    mind."); Griffin v. Sec'y of Veterans Affs., 288 F.3d 1309, 1324

    (Fed. Cir. 2002) ("We have no doubt that the government engages in

    speech when it flies its own flags over a national cemetery, and

    that its choice of which flags to fly may favor one viewpoint over

    another."). Flags themselves have the capacity to communicate

    messages pertaining to, say, a government's identity, values, or

    military strength. See Shurtleff II, 928 F.3d at 173 n.4. Cf.

    Summum, 555 U.S. at 470 ("Governments have long used monuments

    . . . to remind their subjects of their authority and power[,]

    . . . to commemorate military victories and sacrifices and other

    events of civic importance [or] to convey some thought or instill

    some feeling in those who see the structure."). That a government

    flies a flag as a "symbolic act" and signal of a greater message

    to the public is indisputable. See Shurtleff II, 928 F.3d at 173.

    With respect to the issue of whether an observer would

    attribute the message of a third-party flag on the City's third

    flagpole to the City, we found it likely the last time around that

    such an attribution would take place. See id. The record has

  • - 19 -

    since evolved, and these evolutionary changes bolster our earlier

    conclusion. As we previously noted, an observer would arrive in

    front of City Hall, "the entrance to Boston's seat of government."

    Id. at 174. She would then see a city employee replace the city

    flag with a third-party flag and turn the crank until the third-

    party flag joins the United States flag and the Massachusetts flag,

    both "powerful governmental symbols," in the sky (eighty-three

    feet above the ground). Id. A faraway observer (one without a

    view of the Plaza) would see those three flags waiving in unison,

    side-by-side, from matching flagpoles.

    That the third-party flag is part of a broader display

    cannot be understated. As the Summum Court explained, the manner

    in which speech is presented, including the incorporation of other

    monuments in the vicinity, changes the message communicated. See

    555 U.S. at 477. Here, the three flags are meant to be — and in

    fact are — viewed together. The sky-high City Hall display of

    three flags flying in close proximity communicates the symbolic

    unity of the three flags. It therefore strains credulity to

    believe that an observer would partition such a coordinated three-

    flag display (or a four-flag display if one counts the POW/MIA

    flag) into a series of separate yet simultaneous messages (two

    that the government endorses and another as to which the government

    disclaims any relation). Cf. Summum, 555 U.S. 471 ("It certainly

    is not common for property owners to open up their property for

  • - 20 -

    the installation of permanent monuments that convey a message with

    which they do not wish to be associated."). Although the

    plaintiffs might perhaps make the case that a lone Christian Flag,

    nowhere near City Hall, would be seen as devoid of any connection

    to a government entity, a City Hall display that places such a

    flag next to the flag of the United States and the flag of the

    Commonwealth of Massachusetts communicates a far different message

    to an observer: that the City flies all three flags.

    The plaintiffs demur, insisting that an observer, in

    these circumstances, would not interpret a third-party flag as a

    message from the City. This demurrer is premised on the notion

    that the question of whether expression is likely to be viewed as

    government speech must be answered from the viewpoint of a

    "reasonable and informed" observer. Building to a crescendo, the

    plaintiffs posit that a reasonable and informed observer not only

    would see the flag, but also would take note of the intricacies of

    the administrative process leading up to its display. Stripped of

    rhetorical flourishes, the plaintiffs ask us to consider the

    perspective of an observer who — in their words — knows:

    (1) that the City's open invitation policy and

    practice "seeks to accommodate all

    applications seeking to take advantage of the

    City of Boston's public forums" . . .; (2)

    that the City permits private organizations

  • - 21 -

    temporarily to raise their flags . . . as a

    "substitute" for the government's flag; (3)

    that the City has approved at least 284 flag

    raising events . . .; (4) that during the year

    preceding Camp Constitution's application the

    City approved an average of over three flag

    raisings per month; (5) that prior to Camp

    Constitution's application, flag raising

    denials were exceedingly rare, and that Rooney

    had never denied a flag raising request; (6)

    that the City will allow essentially any event

    to take place on City Hall Plaza; and (7) that

    the City does not even review the content of

    the substitute flags . . . (emphasis in

    original).

    Relatedly, the plaintiffs insist that the messages of the third-

    party flags cannot be attributed to the City because "Rooney swore

    he had no knowledge of anyone's ever believing the City has

    endorsed or adopted the message of a private organization that was

    allowed access to the flag raising forum." An observer armed with

    this information, the plaintiffs say, would not attribute the

    third-party-flag speech to the City.

    The plaintiffs' conception of a "reasonable and

    informed" observer is not plucked from thin air. Justice Souter,

  • - 22 -

    concurring in Summum, advocated for a standard based on the

    reaction of a "reasonable and fully informed observer." 555 U.S.

    at 487 (Souter, J., concurring). The Court did not explicitly

    adopt this standard, but has nonetheless focused on the physical

    attributes of the speech and general information about the locus

    at which the speech takes place. In Summum, for example, the Court

    considered what "persons who observe" such monuments see, id. at

    471, and added that most people know that parks are government

    property, id. at 472 ("Public parks are often closely identified

    in the public mind with the government unit that owns the land.").

    So, too, the Walker Court considered the physical attributes of

    the speech visible to "persons who observe" license plates, 576

    U.S. at 212 ("The governmental nature of the plates is clear from

    their faces . . . ."), as well as widely available information

    about license plates, id. ("[T]he State requires Texas vehicle

    owners to display license plates, and every Texas license plate is

    issued by the State . . . . Texas also owns the designs on its

    license plates . . . . And Texas dictates the manner in which

    drivers may dispose of unused plates."). The City's treatment of

    third-party flags satisfies the standard that the Supreme Court

    has set for attribution: an observer not only would see the third-

    party flag flying with two government flags in front of a building

    labeled "Boston City Hall" but also would reason that the building

  • - 23 -

    is a government building and that the imposing flagpoles located

    on that property are owned and dressed by the City.2

    The plaintiffs have another string to their bow. They

    argue that the Summum/Walker framework is inapplicable because the

    third-party flags that the City flies lack the permanence of the

    monuments in Summum. We rejected this same argument in Shurtleff

    II, 928 F.3d at 175, and the plaintiffs have advanced no compelling

    reason for us to revisit the matter. To our way of thinking, the

    decisive datum is that the Walker Court explicitly disavowed any

    suggestion that permanence is a prerequisite for finding

    government speech. See 576 U.S. at 213-14.

    We turn next to the question of whether the City

    maintains control over the messages conveyed by the third-party

    2 We add, moreover, that even if we were prepared to adopt a

    "reasonable and informed observer" standard, such a standard would

    be satisfied here. See Shurtleff II, 928 F.3d at 173 n.5. It is

    the manner and circumstances in which a third-party flag is

    displayed, together with the logical inferences that a reasonable

    and informed observer would likely draw based on available

    information, that lead to a conclusion that the third-party-flag

    speech can be attributed to the government.

    Relatedly, Justice Souter's concurrence in Summum warned

    primarily against the deployment of categorical rules in

    determining what constitutes government speech. Summum, 555 U.S.

    at 487 (Souter, J., concurring). Contrary to the plaintiffs'

    formulation of the "reasonable and informed observer" standard,

    neither Justice Souter's concurrence nor any other cited opinion

    has suggested that such an observer would necessarily know things

    like the City's regulations for flag-raising or the decisionmaking

    trends of a specific government employee. Absent any vestige of

    precedential support, we decline the plaintiffs' invitation to

    adopt and apply a newly minted standard.

  • - 24 -

    flags. The City has instituted procedures to ensure both that it

    is aware of all flags flown and that such flags display approvable

    messages. It is undisputed that "[i]nterested persons and

    organizations must apply to the City for a permit before they can

    raise a flag on this flagpole," and that the flag-raising

    guidelines expressly require the City's permission to fly a third-

    party flag. Shurtleff II, 928 F.3d at 174. And in order for a

    flag-raising request to secure approval, Rooney must review the

    request to determine whether the proposed flag-raising is

    consistent with the City's message, policies, and practices. Cf.

    Summum, 555 U.S. at 472 (finding government speech when

    "[g]overnment decisionmakers select the monuments that portray

    what they view as appropriate for the place in question, taking

    into account such content-based factors as esthetics, history, and

    local culture"); Walker, 576 U.S. at 213 (finding control when

    "[t]he Board must approve every specialty plate design proposal

    before the design can appear on a Texas plate").

    What is more, the City limits physical access to the

    flagpole: the flagpole is restricted government property, and the

    City restricts access to it by providing only parties whose

    requests are approved with a hand crank. All in all, the decision

    to fly a flag falls squarely on the City, and not on any other

    entity or person. This final approval authority means that when

    a third-party flag flies over City Hall, it flies only because the

  • - 25 -

    City chose to fly it. And in reserving this final approval

    authority, the City "has 'effectively controlled' the messages

    conveyed" in the flag display. Id. (quoting Johanns v. Livestock

    Mktg. Ass'n, 544 U.S. 550, 560 (2005)).

    The plaintiffs argue that the type of government

    practices that led the Court in Summum and Walker to find

    government control are not present here. They note, for example,

    that the Summum Court observed that the government "took ownership

    of [the] monument" and that "[a]ll rights previously possessed by

    the monument's donor [were] relinquished." 555 U.S. at 473-74.

    They also note that, in Walker, the state owned the designs that

    were on all specialty license plates, issued all state plates, and

    dictated how a driver may dispose of a plate. 576 U.S. at 212.

    Here, by contrast, the City does not require a private organization

    that seeks to raise a flag to surrender ownership of that flag,

    nor does it require that a flag bear any particular design or logo.

    This argument lacks force. The government's ownership

    of a monument or a design are relevant to the "attribution" prong

    of the Summum/Walker test — not to the "control" prong. See

    Walker, 576 U.S. at 212; Summum, 555 U.S. at 473-74. The latter

    prong instead turns on whether the government "effectively

    control[s]" the message conveyed through selection. See Summum,

    555 U.S. at 473 (quoting Johanns, 544 U.S. at 560-61). The City's

  • - 26 -

    final approval authority over all third-party flags evinces choice

    and selection and, thus, suffices to show effective control.

    Struggling to undermine the finding of control, the

    plaintiffs highlight three pieces of evidence uncovered during

    pretrial discovery (and not available at the preliminary

    injunction stage): first, until the plaintiffs came along, the

    City had not previously denied a flag-raising request; second,

    Rooney's customary practice was not to ask to see a proposed flag

    before approving such a request; and third, although the

    preliminary injunction record previously noted only fifteen

    instances of flag-raisings, the expanded record reveals that the

    City had approved 284 requests. The plaintiffs submit that these

    freshly unearthed facts demonstrate that the City did not exercise

    meaningful control over the message conveyed by third-party flags.

    We do not agree.

    We find the rate of rejection unpersuasive because the

    exercise of the authority to reject is necessarily case-specific

    and limited by the kinds of requests the City receives. Since the

    City had never rejected a request, the flag-raisings in the record

    are, in effect, a record of the requests received. Every request

    has been for the flag of a country, civic organization, or secular

    cause. That potential applicants have successfully self-selected

    and offered a narrow set of acceptable secular designs cannot be

    evidence that the City is open to fly any flag.

  • - 27 -

    The limited kinds of unique flags and the repeated

    requests to fly the same flags also help to explain Rooney's

    practice. Some of the flags were no doubt familiar to him and, at

    any rate, a request to fly a flag includes a short description of

    the flag. Because Rooney recognizes the names of sovereign

    nations, because the City had seen most, if not all, of these flags

    in previous years, and because in twelve years no person had

    requested to fly anything that was not the flag of a country, civic

    organization, or secular cause, a short description of each

    proposed flag was sufficient for Rooney's purposes. But once

    Rooney received a request for a flag he did not recognize as

    falling within an acceptable secular category — the Christian Flag

    — he demanded that he see it.

    The greater number of flag-raisings is likewise

    insufficient to ground a finding that the City does not control

    the flagpole. The Walker Court was clear that the number of flags

    — or messages — is not dispositive. 576 U.S. at 214. Here, the

    Walker's Court logic applies because the number of flags approved

    by the City is not evidence of universal access to the flagpole.

    After all, the group of third-party flags raised over City Hall

    during the twelve-year period is not a random assortment. Each

    flag represents a country, civic organization, or secular cause.

    Instead of evincing a lack of control, the greater number of flag-

    raisings reveals a pattern that supports the City's claim that it

  • - 28 -

    approves only flags that it deems "consistent with the City's

    messages, policies, and practices."

    In this context, the Supreme Court has not laid out an

    elaborate protocol for finding effective control. Broadly

    speaking, it is the City's "select[ion] [of] those [flags] that it

    wants to display for the purpose of presenting the image of the

    City that it wishes to project" that establishes City control over

    the message conveyed. Summum, 555 U.S. at 473. In the case at

    hand, Rooney's approval practices have not been shown to be a

    rubber stamp. There is nothing remarkable about the fact that

    some flag descriptions may trigger further review, while others do

    not. Wherever the line falls, that a line exists is evidence of

    "selective receptivity." See id. at 471. That selectivity exists

    here, and it is a selectivity born out of a concern for the City's

    image. The record, taken as a whole, plainly shows a city

    conscious of the message that it flies on the third flagpole and

    an accompanying selectivity to tailor that message to the City's

    desired image. See id. Accordingly, each of the three

    Summum/Walker factors supports the conclusion that the City

    engages in government speech when it decides which flags to display

    in front of City Hall.

    The plaintiffs demur. They deride this classification

    of the City's speech, arguing vehemently that the City does not

    engage in expressive activity through these third-party flags

  • - 29 -

    because it has designated the third flagpole as a forum for private

    speech. In support, they offer two arguments. First, the

    plaintiffs say that the City explicitly opened the flagpole to

    private expression. Specifically, they point to the third page of

    the City's paper event application form, which states that the

    City "seeks to accommodate all applicants seeking to take advantage

    of the City of Boston's public forums." The plaintiffs suggest

    that the phrases "all applicants" and "public forums" transmogrify

    the third flagpole into a government-designated public forum.

    Second, and relatedly, the plaintiffs argue that the City

    implicitly opened the flagpole for public discourse because the

    record now shows that the City had granted flag-raising permission

    284 times without ever denying an earlier request.

    These two arguments coalesce into a single theme — but

    it is a theme that gains the plaintiffs no traction. We previously

    rejected the first of these arguments because a conclusion that

    the City has designated the flagpole as a public forum "is

    precluded by our government-speech finding." Shurtleff II, 928

    F.3d at 175. As we explain below, that rationale still withstands

    scrutiny — and even under traditional public-forum analysis, the

    plaintiffs' asseverational array lacks force.

    The government creates a public forum "only by

    intentionally opening a nontraditional forum for public

    discourse." Cornelius v. NAACP Legal Def. & Edu. Fund, Inc., 473

  • - 30 -

    U.S. 788, 802 (1985). Government inaction or permission for

    limited discourse cannot establish a public-forum designation.

    Id. To determine if the City has converted the flagpole into a

    public forum, we look to the City's "policy and practice" and also

    may consider "the nature of the [flagpole] and its compatibility

    with expressive activity." Id. "We will not find that a public

    forum has been created in the face of clear evidence of a contrary

    intent," nor will we make such a finding "when the nature of the

    property is inconsistent with expressive activity." Id. at 804.

    At the preliminary injunction stage, we rejected the

    plaintiffs' argument that the City's "public forum[]" incantation

    rendered the flagpole a public forum because the record contained

    clear evidence that the City did not intend to open the flagpole

    to public discourse. Shurtleff II, 928 F.3d at 176. On the

    enlarged record now before us — which shows that the City over

    time has approved 284 requests and has never denied any request

    other than the plaintiffs' request — our conclusion remains the

    same.

    The record is pellucid that the City is not receptive to

    any and all proposed flag designs. As we previously indicated,

    the City controls which third-party flags are flown from the third

    flagpole. A flag-raising is approved only after Rooney "screen[s]"

    a proposed flag for "consisten[cy] with the City's message,

    policies, and practices" and provides his final approval. Id.;

  • - 31 -

    cf. Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37,

    47 (2001) (finding that school's mail system had not been

    designated as a public forum when school principal had to grant

    permission to access system). Furthermore, all 284 flags

    previously flown were flags of countries, civic organizations, or

    secular causes. That the City had not rejected prior requests is

    insufficient to conclude that the City accepts any and all flags

    because the record shows that the City had criteria for approval

    that limited flagpole access and that all flags flown satisfied

    those criteria. Cf. Cornelius, 473 U.S. at 804-05 (declining to

    find designated public forum notwithstanding lack of evidence

    showing how many organizations had been denied permission because

    admission criteria evidenced selective access). Here, the City's

    permission procedures evince selective access to the third

    flagpole, and "[t]he government does not create a designated public

    forum when it does no more than reserve eligibility for access to

    the forum to a particular class of speakers, whose members must

    then, as individuals, 'obtain permission.'" Ark. Edu. Television

    Comm'n v. Forbes, 523 U.S. 666, 679 (1998). The City's

    restrictions demonstrate an intent antithetic to the designation

    of a public forum, and those restrictions adequately support the

    conclusion that the City's flagpole is not a public forum. See

    Cornelius, 473 U.S. at 803.

  • - 32 -

    That ends this aspect of the matter. Because the City

    engages in government speech when it raises a third-party flag on

    the third flagpole at City Hall, that speech is not circumscribed

    by the Free Speech Clause. See Walker, 576 U.S. at 215; Summum,

    555 U.S. at 467. The City is therefore "entitled" to "select the

    views that it wants to express." Summum, 555 U.S. at 467-68

    (internal citations omitted). This entitlement includes both the

    right to decide not to speak at all and the right to disassociate

    itself from speech of which it disapproves. See Mech v. Sch. Bd.

    of Palm Beach Cnty., 806 F.3d 1070, 1074 (11th Cir. 2015); Downs

    v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1012 (9th Cir. 2000).

    Here, the City exercised those rights by choosing not to

    fly the plaintiffs' third-party flag. In the City's view, this

    choice allows it more appropriately to celebrate the diversity and

    varied communities within Boston. Should the citizenry object to

    the City's secular-flag policy or to its ideas about diversity,

    the voters may elect new officials who share their concerns. See

    Summum, 555 U.S. at 468-69; Bd. of Regents of Univ. of Wisconsin

    Sys. v. Southworth, 529 U.S. 217, 235 (2000); Walker, 576 U.S.

    200, 207. After all, it is the electorate and the political

    process that constrains the City's speech, not the Free Speech

    Clause. See Summum, 555 U.S. at 468-69. Consequently, we uphold

    the district court's entry of summary judgment in favor of the

  • - 33 -

    City on all of the plaintiffs' free speech claims.3 See Shurtleff

    III, 2020 WL 555248, at *6.

    C. The Establishment Clause Claim.

    The fact that the City is engaging in government speech

    does not relieve it from the obligation to comport with the

    Establishment Clause. Summum, 555 U.S. at 468. The plaintiffs

    assert that the City has failed to satisfy this obligation for two

    reasons. First, they assert that the City discriminated between

    religion and nonreligion by excluding their proffered flag while

    continuing to fly non-religious flags. Second, they assert that

    the City discriminated between religions by excluding their

    Christian Flag while flying flags that contain other religious

    imagery. As examples, the plaintiffs cite the City's own flag,

    the Turkish flag, the Portuguese flag, and the Bunker Hill flag.

    The City's conduct in this regard, the plaintiffs say, is not only

    discriminatory but also demonstrates hostility toward religion.

    The "touchstone" for Establishment Clause claims "is the

    principle that the 'First Amendment mandates governmental

    3 This ruling extends, of course, to the plaintiffs'

    "unbridled discretion" claim. Both the plaintiffs' articulation

    of that claim and the authority that they present in support of it

    presuppose the existence of a public forum. Our conclusion that

    the flagpole is not a public forum therefore defenestrates the

    plaintiffs' claim. See Widmar v. Vincent, 454 U.S. 263, 267-68,

    267 n.5 (1981) (noting that university's constitutional obligation

    to justify prior restraint on speech arises from its designation

    of its campus as public forum and would not exist otherwise).

  • - 34 -

    neutrality between religion and religion, and between religion and

    nonreligion.'" McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860

    (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).

    The government does not act neutrally when its "ostensible object

    is to take sides." Id. Accordingly, the government "cannot act

    in a manner that passes judgment upon or presupposes the

    illegitimacy of religious beliefs and practices." Masterpiece

    Cakeshop Ltd. v. Col. Civ. Rights Comm'n, 138 S. Ct. 1719, 1731

    (2018).

    Starting from this baseline, we turn first to the

    allegations of discrimination between religion and nonreligion.

    At the outset, we take note that the plaintiffs' Establishment

    Clause claim is scantily developed: they have neither identified

    any evidence supporting a claim of hostility nor advanced any

    serious legal argument for such a claim. The plaintiffs merely

    recite the general neutrality obligation that the Establishment

    Clause imposes upon the City, failing to articulate any reason why

    this obligation requires the City to display their religious flag.4

    4 The plaintiffs' sparse treatment of their Establishment

    Clause claim suggests that this case, at its core, is not an

    Establishment Clause case. This suggestion is bolstered by the

    fact that the type of hostility argument conceptualized by the

    plaintiffs appears to draw its essence from Supreme Court decisions

    involving the Free Exercise Clause and applying the strict-

    scrutiny standard. See, e.g., Trinity Lutheran Church of Columbia,

    Inc. v. Comer, 137 S. Ct. 2012 (2017) (holding that exclusion of

    church from otherwise available public program on account of

    religious status violates Free Exercise Clause despite

  • - 35 -

    The exclusion of religious entities from a public

    program, without more, does not violate the Establishment Clause.

    See Carson ex rel. O.C. v. Makin, 979 F.3d 21, 49 (1st Cir. 2020).

    Nor is proof of such exclusion evidence of hostility towards

    religion. See id. Here, moreover, the record does not give rise

    to any suggestion that the City created the flag-raising program

    with the goal of inhibiting religion. Cf. Rosenberger v. Rector

    & Visitors of Univ. of Va., 515 U.S. 819, 840 (1995) (finding

    governmental program to be "neutral toward religion" when

    government did not "create[] it to advance religion or adopt[]

    some ingenious device with the purpose of aiding a religious

    cause"); McCreary, 545 U.S. at 860 (requiring proof of government

    "purpose" to favor one side over the other). In fact, the City

    went the extra mile: to help avoid any such impression, it offered

    the plaintiffs the option of hosting an event alongside the

    flagpoles so as to permit the plaintiffs to continue to practice

    and share their religion (just as they would had the City granted

    their flag-raising request). Under these circumstances, the

    government's establishment concerns); Espinoza v. Montana Dep't of

    Revenue, 140 S. Ct. 2246 (2020) (same where government excluded

    school based on religious character of the school). In the case

    at hand, the plaintiffs do not advance a cognizable free exercise

    claim but, rather, seek the application of a concept of hostility

    to religion not typically applied to Establishment Clause claims

    like this one. Seen in this light, the plaintiffs' theory fits

    awkwardly with precedent — an awkwardness that greatly diminishes

    the force of their claim.

  • - 36 -

    City's conduct simply cannot be construed to suggest the

    disparagement of the plaintiffs' religion. Cf. Masterpiece

    Cakeshop, 138 S. Ct. at 1729 (finding hostility toward religion

    when government "disparage[d]" plaintiff's religion "by describing

    it as despicable," "characterizing it as merely rhetorical," and

    comparing it "to defenses of slavery and the Holocaust").

    We add, moreover, that while the Establishment Clause

    may not require a secular-flag policy, the City "may act upon [its]

    legitimate concerns about excessive entanglement with religion" in

    administering its flag-raising program. Eulitt ex rel. Eulitt v.

    Maine, Dep't of Educ., 386 F.3d 344, 355 (1st Cir. 2004); see also

    Carson ex rel. O.C., 979 F.3d at 35. The City has presented just

    such a set of concerns in this case and, thus, has made a valid

    choice to remain secular. Shurtleff himself described the

    Christian flag as "an important symbol of our country's Judeo-

    Christian heritage." Should the City honor the plaintiffs'

    request, members of the audience would watch the Christian Flag

    join the flags of the United States and Massachusetts in front of

    the entrance of City Hall. Such a display could be deemed to

    constitute a religious statement on the City's part. Cf. Am.

    Jewish Cong. v. City of Chicago, 827 F.2d 120, 128 (7th Cir. 1987)

    (noting that placement of religious display at city hall heightens

    Establishment Clause concerns because "every display . . . is

    implicitly marked with the stamp of government approval"). And

  • - 37 -

    such a perception would underscore the realistic nature of the

    City's belief that the flying of a flag would be an endorsement of

    the flag's message. See Widmar v. Vincent, 454 U.S. 263, 274

    (1981) (evaluating whether government policy confers "any

    imprimatur of state approval on religious sects or practices").

    Our government-speech finding bolsters the conclusion

    that the City would be perceived to endorse the messages conveyed

    by the flags that it flies. When a forum is open to all, it is

    doubtful that an observer "could draw any reasonable inference of

    [government] support" for a particular religion from religious

    speech alone. Id. at 274, 274 n.14. In such a situation, the

    City would not be seen as supporting religious goals. See id.

    Here, however, the City speaks for itself, one third-party flag at

    a time. Because an observer would attribute the display's message

    to the City, see supra Part II(B), the powerful display of a single

    religion's flag (in this case, an "important symbol" of the

    plaintiffs' religion) could signal the City's embrace of that

    religion.

    To complete the picture, it is worth noting that the

    Supreme Court has explicitly distinguished the religious character

    of long-standing religious monuments, symbols, and practices from

    that of newly erected or adopted ones. See Am. Legion v. Am.

    Humanist Assoc., 139 S. Ct. 2067, 2085 (2019). In relevant part,

    the American Legion Court reasoned that, with the passage of time,

  • - 38 -

    "religiously expressive monuments, symbols, and practices can

    become embedded features of a community's landscape and identity,"

    such that the community "may come to value them without necessarily

    embracing their religious roots." Id. at 2084. In other words,

    a display of a religious symbol, over time, can "t[ake] on an added

    secular meaning." Id. at 2089. Long-standing monuments therefore

    enjoy "a strong presumption of constitutionality." Id. at 2085.

    This presumption does not apply, though, to the

    plaintiffs' proposed religious-flag display. The City has never

    before displayed such a flag and, as such, this pioneering

    elevation of an "important symbol" of the Christian heritage would

    come without the secular context or importance that the passage of

    time may have afforded other displays. The raising of the

    Christian Flag thus would threaten to communicate and endorse a

    purely religious message on behalf of the City. Where that

    endorsement is as widely visible and accessible as it is here, and

    where the City could run the risk of repeatedly coordinating the

    use of government property with hierarchs of all religions, the

    City's establishment concerns are legitimate. See Lemon v.

    Kurtzman, 403 U.S. 602, 615 (1971). Accordingly, we conclude that

    the City's choice to refrain from endorsing a religion through the

    raising of a religious flag comports with the City's constitutional

    obligations.

  • - 39 -

    This leaves the plaintiffs' claim that the City's

    raising of certain flags that incorporate religious imagery while

    excluding the plaintiffs' Christian Flag constitutes an

    endorsement of certain religions over others and, thus, works a

    violation of the Establishment Clause. "[A] flag that references

    religion by using religious symbols in part of its field is not

    itself a religious flag." Shurtleff II, 928 F.3d at 177. As the

    plaintiffs repeatedly emphasize, Rooney does not even look at the

    flag designs before granting most approvals. And when he reviewed

    what an applicant described as the "Portuguese Flag," Rooney

    approved it because it stands for Portugal, the country, and not

    because it contained certain religious symbols. For aught that

    appears, Rooney's decision to fly those country/entity flags that

    include religious imagery was one without a religious dimension.

    In a logical universe, then, the fact that Rooney elected to let

    the Flag of Portugal fly is manifestly insufficient to establish

    that the City is hostile to the plaintiffs' religion.5

    The short of it is that neutrality toward religion does

    not obligate the City to fly the Christian Flag on its third

    flagpole. The City remains neutral where, as here, it wholly

    refrains from passing judgment on religion. See McCreary, 545

    5 For substantially the same reasons, Rooney's decision to

    allow the hoisting of other flags incidentally containing

    religious imagery (such as the Turkish flag, the Bunker Hill flag,

    and the City's own flag) do not evince hostility toward religion.

  • - 40 -

    U.S. at 876. Consequently, we hold that no violation of the

    Establishment Clause occurred when the City elected not to fly the

    plaintiffs' Christian Flag.

    D. The Fourteenth Amendment Claim.

    There is one last stop on our itinerary. The plaintiffs

    submit that the City's conduct amounts to content-based

    discrimination against their religious speech and, thus, violates

    the Equal Protection Clause. The City counters that, because the

    flagpole is not a public forum and because the plaintiffs' First

    Amendment claims are futile, their equal protection claim fails as

    a matter of law.

    We pause to brush aside a procedural gambit. The

    plaintiffs suggest that the City has waived any counter-argument

    to their equal protection claim. This is magical thinking: the

    City advanced the very same argument upon which it now relies at

    summary judgment. No more was exigible to preserve the argument

    for appellate review. See United States v. Lilly, 13 F.3d 15, 18

    (1st Cir. 1994).

    Turning to the merits of the claim, we start with the

    familiar proposition that the Equal Protection Clause demands that

    "all persons similarly situated should be treated alike." City of

    Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To

    establish an equal protection claim, a plaintiff must show that

    "(1) the person, compared with others similarly situated, was

  • - 41 -

    selectively treated; and (2) that such selective treatment was

    based on impermissible considerations such as race, religion,

    intent to inhibit or punish the exercise of constitutional rights,

    or malicious or bad faith intent to injure a person." Davis v.

    Coakley, 802 F.3d 128, 132-33 (1st Cir. 2015).

    What we previously have said — that the City has been

    engaged in government speech not evocative of First Amendment

    protections and that the flagpole is not a public forum, see supra

    Part II (B) — sounds the death knell for the plaintiffs' equal

    protection claim. The distinguishing feature of the speech cases

    in which the Supreme Court has found violations of the Equal

    Protection Clause is the existence of a public forum. See Perry

    Educ. Ass'n, 460 U.S. at 55; see, e.g., Police Dep't of Chicago v.

    Mosely, 408 U.S. 92, 96 (1972); Carey v. Brown, 447 U.S. 455, 461

    (1980). Conversely, the Court has made nose-on-the-face plain

    that "on government property that has not been made a public forum,

    not all speech is equally situated, and the State may draw

    distinctions which relate to the special purpose for which the

    property is used." Perry Educ. Ass'n, 460 U.S. at 55. In the

    absence of a public forum — and we have found none here — the

    City's practice need only pass rational basis review. See id.

    Put another way, the practice need only bear a rational

    relationship to some legitimate governmental purpose. See id.

    Here, such a purpose is evident in the celebration of Boston's

  • - 42 -

    varied and diverse communities. Consequently, the plaintiffs'

    equal protection claim fails.

    III. CONCLUSION

    We need go no further. Like the district court, see

    Shurtleff III, 2020 WL 555248, at *6, we have taken the measure of

    the plaintiffs' claims and found them wanting. Hence, the judgment

    of the district court is

    Affirmed.